Appeal from the Circuit Court of St. Clair County; the Hon.
Kenneth J. Juen, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant pleaded guilty to various offenses including murder and was sentenced inter alia to the death penalty. On appeal to the Illinois Supreme Court the cause was reversed and remanded for a new sentence on the murder count. On remand the circuit court of St. Clair County imposed an 80-year sentence for murder, to be served consecutively to the other sentences imposed, the greatest of which was 60 years. Defendant appeals the murder sentence.
Defendant was jointly indicted with Paul Bainter for offenses occurring at the State Park Cafe in Caseyville, Illinois, on May 20, 1978. On October 2, 1978, defendant pleaded guilty to murder, attempted murder (four counts), armed robbery, conspiracy to commit armed robbery, and armed violence. The State had agreed to recommend concurrent sentences of 60 years for murder, 15 years for each count of attempted murder, and 30 years for armed robbery and armed violence; however, before a sentencing hearing could be held, defendant was permitted to withdraw his guilty plea on his own motion.
On February 6, 1979, defendant again pleaded guilty to all eight counts. The State's Attorney informed the court that the State would seek the death penalty. Defendant was admonished inter alia concerning the possible sentences and the possibility of consecutive sentencing on the murder charge if sentenced to a term of years for murder. The State's Attorney recited the factual basis for the pleas, as follows:
Armed with a .30-caliber carbine rifle called an "Enforcer" and wearing a hood partially covering his face, defendant entered the State Park Cafe and announced a robbery. He fired two shots into the floor near the patrons. Defendant ordered the patrons to place their money on a table and move into the kitchen. Defendant fired two shots at Elsie Wallace, who was killed. Defendant followed the remaining patrons into the kitchen and again demanded money. Someone responded that he already had it. Defendant fired the rifle at least eight more times. James Outland was shot in the face, Carol Alier in the right breast, George Delisle in the leg and Terry Wallace in the arm. Defendant fled, leaving behind the money taken from the patrons and the cash register.
Defendant and Bainter were arrested in Texas. Defendant told police that he recalled announcing the holdup but did not recall shooting anyone. This statement also mentioned that defendant and Bainter had drunk beer and taken mescaline prior to the offenses.
Defendant's death penalty hearing was by the circuit court sitting without a jury. The State's evidence included testimony by the four persons defendant had shot in the State Park Cafe kitchen. These witnesses testified in detail concerning the events in the kitchen. Defendant's wife and Bainter testified regarding defendant's and Bainter's drinking prior to the offenses in question. Bainter also testified concerning the prior drug usage and defendant's involvement in an unrelated burglary. Dr. Syed Raza, a psychiatrist, testified that defendant had told him that he drank two or three cases of beer and took hallucinogenic drugs prior to the offenses and that based on these facts and his examination of defendant, defendant's mental faculties would have been "severely" affected. State Agent Jimmy Bivens testified that he had not found any arrests or convictions of defendant in his check with the Illinois Crime Bureau. The State cross-examined Bivens concerning the arrest of a person named Amos Earl Walker in St. Louis County in 1975.
The court sentenced defendant to death for murder, 60 years for each count of attempted murder, 60 years for armed robbery, 30 years for armed violence and three years for conspiracy to commit armed robbery. The court did not indicate whether the sentences were to be served concurrently or consecutively.
On review by the supreme court (People v. Walker (1981), 84 Ill.2d 512, 419 N.E.2d 1167), that court vacated the conspiracy conviction, remanded for resentencing on the murder, and affirmed in all other respects. With respect to the murder count, the court stated that "the cause is remanded to the circuit court for the imposition of a sentence not greater than 80 years in the penitentiary." 84 Ill.2d 512, 526, 419 N.E.2d 1167, 1176.
Defendant was resentenced by the same sentencing court on June 26, 1981. Both parties elected to rely on the evidence adduced at the death penalty hearing. The State recommended a consecutive sentence of 80 years, and the court imposed that sentence.
• 1, 2 First, defendant argues that the State's consecutive sentence recommendation punished defendant for the lawful exercise of his rights, i.e., appealing his death sentence. The courts> have recognized that the imposition of a penalty upon a defendant for having successfully invoked a right afforded by law would be a violation of due process of law. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072; Blackledge v. Perry (1974), 417 U.S. 21, 40 L.Ed.2d 628, 94 S.Ct. 2098.) Defendant urges that this principle prevents consecutive sentencing in the instant case. We disagree. The vindictiveness principles were held to have been triggered in the case at bar when the prosecutor, without notice, increased the possible sanction from a penitentiary sentence to a sentence to death for no valid reason after the defendant had exercised a procedural right. (People v. Walker.) However, as to the imposition of consecutive sentences, the record indicates that defendant was advised of the possibility of consecutive sentences before his original plea of guilty was made; and, after its withdrawal and before the entry of the second guilty plea, defendant was again admonished that, if sentenced to a term of imprisonment for murder, his sentences could be ordered to run consecutively. Thus, it cannot be said that defendant was not free to pursue his statutory right to appeal free from the fear that if a new trial were granted, he would face an additional and more severe sanction of consecutive sentences.
We are of the opinion that this conclusion comports with the rationale of the supreme court in the automatic appeal of defendant's death sentence where the court stated:
"If it were shown on the record in this case that the prosecutor informed defendant from the start that the death penalty would be sought if defendant did not plead guilty, had defendant subsequently pleaded guilty, and then had defendant reneged on that bargain, we would not prevent prosecutors from again seeking to execute him." (People v. Walker (1981), 84 Ill.2d 512, 525, 419 N.E.2d 1167, 1175.)
The substitution of the term "consecutive sentences" for references to the death penalty and seeking to execute defendant in the above quote, results in precisely what transpired in the case after remand. Defendant, having been made aware of the possibility of consecutive ...